CO885-(15-16) — Page 49

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PUBLIC RECORD OFFICE

Reference :-

ITC.O. 885

.....ليالينا

15 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

Report-

That in our opinion it would not be competent for the Legislative Council of Cyprus by an Ordinance to authorise the raising of a "force for service in Her Majesty's dominions outside Cyprus.

The power granted to Her Majesty by the Agreement of 14th August, 1878, to make laws and conventions for the government of the island, and under which the Legislative Council is constituted, would not extend to raising forces for service outside the island.

The Right Honourable J. Chamberlain, M.P.,

&c.,

&c.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.

22924.

SIR,

No. 43.

(NATAL.)

LAW OFFICERS TO COLONIAL OFFICE.

Royal Courts of Justice, July 17, 1900. We were honoured with your commands signified in Mr. Bertram Cox's letter of the 10th instant, stating that he was directed by you to transmit to us two despatches No. 111, from the Governor of Natal, with their enclosures, having reference to two cases before the 6th April. Supreme Court of Natal, one arising out of the opening of letters by the Military Censor No. 182, under authority of Martial Law, which was proclaimed by the Governor on 23rd October 6th June. in a Proclamation (a copy of which accompanied Mr. Bertram Cox's letter) and the other Proclama- having reference to the power of the Civil Courts of the Colony to review the proceedings tion 23rd of Courts Martial.

October,

1899.

No. 413,

That Mr. Bertram Cox was also to transmit two despatches from the Governor of the Cape with enclosures, from which it would be seen that in the Supreme Court of the 13th June. Cape Colony two of the Judges had expressed the view that, at all events during the No. 439, existence of Martial Law, the regularity of the proceedings of Courts Martial cannot be 20thJune. enquired into.

That the Judge of the Supreme Court of Natal, however, had expressed an opinion to the effect that, notwithstanding the existence of Martial Law, a subject of Her Majesty had the right at any time to appeal to the Civil Courts on the ground that Martial Law was being enforced "recklessly, needlessly, cruelly, or immoderately," and might enforce a demand to restrain such exercise by appeal to the civil tribunals, and further, that persons acting under Martial Law might be called upon by the Civil Courts to justify by proof of necessity any act done in the administration of Martial Law.

That it appeared to you that if this view of the law was correct, great difficulty might be experienced in the proper administration of Martial Law unless the extreme step were taken of forcibly suspending the sittings of the Civil Courts.

That Mr. Bertram Cox was to request us to take these papers into our consideration and to advise you,

(1.) Whether the opinion expressed by the Supreme Court of Natal was correct in law, or if not, in what respects it was erroneous.

(2.) If the opinion was correct, what steps could be taken to ensure that the powers which the Military Authorities deemed necessary for the proper administration of Martial Law should not be interfered with by the Civil Courts.

(3.) Had the Supreme Court of Natal the right to review a decision of a Court constituted during state of siege (as at Ladysmith) at a time when it was unable to

exercise its jurisdiction.

(4.) Should an appeal be entered against the decision of the Supreme Court of Natal.

(5.) Generally.

In obedience to your commands we have the honour to

Report-

1. That in our opinion the Judgment of the Supreme Court of Natal is substantially correct. We do not understand that the Supreme Court claims the right to entertain appeals from the sentences passed under Martial Law, but only to inquire, on an applica tion in the nature of habeas corpus, whether circumstances exist justifying the use of force in the interests of the public safety, and whether the force used is in excess of what is reasonably necessary.

The Proclamation of Martial Law cannot prevent the lawfully constituted tribunals of a country exercising their jurisdiction to inquire to this extent into the interference with the liberty of persons who are subject to their jurisdiction. The exercise of any such jurisdiction could only be prevented by force, as, by suspension of such tribunals. Any such application would be barred by an Act of Indemnity legalizing all that had been done in the enforcement of Martial Law.

6429-25-7/1900 Wt 324 D&S